from the yeah,-nothing-excessive-about-this-sort-of-enforcement dept

Upload a document to Scribd, go to prison for at least four years. Ridiculous and more than a bit frightening, but in a case that has some obvious parallels with Aaron Swartz's prosecution, that's the reality Colombian student Diego Gomez is facing. In the course of his research, he came across a paper integral to his research. In order to ensure others could follow his line of thinking, Gomez uploaded this document for others to view.

The important thing is to make a correct citation, attributing researchers’ work by indicating their name and year of publication and, of course, not claiming the work of another researcher, but to recognize it and value it. Therefore, what we usually do is to reference the findings and make them available to those who need them.

The paper's author obviously disagreed and sued Gomez. But unlike civil lawsuits in the US, copyright-related lawsuits in Columbia carry with them the threat of imprisonment.

Under the allegations of this lawsuit, Gomez could be sent to prison for up to eight years and face crippling monetary fines.

To be clear, Gomez did not try to profit from the paper. He also wasn't acting as some sort of indiscriminate distributor of infringing works. But under Colombian law, none of that matters. But to really see who's to blame here for this ridiculous level of rights enforcement, you have to look past the local laws, past the paper's author and directly at the US government.

[Gomez] is being sued under a criminal law that was reformed in 2006, following the conclusion of a free trade agreement between Colombia and the United States. The new law was meant to fulfill the trade agreement's restrictive copyright standards, and it expanded criminal penalties for copyright infringement, increasing possible prison sentences and monetary fines.

More details on the awfulness of Colombia's law (spurred on by US special interests) are available in the EFF's earlier coverage. Colombia gave the US copyright industry everything it wanted in order to secure this free trade agreement… and then it just kept going.

Colombia passed a criminal reform bill in 2006 that enacted many of these provisions, but Bill 201 goes even further. Under it, copyright infringers could face harsh criminal penalties, whether or not the individual is aware of committing infringement. It sets up severe penalty provisions including a minimum prison sentence of four years and significant monetary fines.

Like previous US FTAs, it misleadingly defines “commercial scale” to include non-commercially motivated infringement, forcing US trading partners to adopt the US legal standard.

This bill was hastily passed as a welcoming gift for President Obama, shoved through the legislative process in order to get out ahead of the administration's appearance at a Colombia-hosted conference. This deference to the US government could cost Gomez at least four years of his life.

While Colombia seemed very eager to take the worst parts of US copyright law (and make them even more terrible), it was less inclined to take any of the good.

Colombia does not have flexible fair use system like in the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and are narrowly tailored to some specific situations that are not at all applicable to the digital age. Therefore none of these will apply directly to his case even if it was done for educational purposes.

The only silver lining here is that the court still needs to consider two aspects before making its decision: mens rea and whether there was any actual economic harm to the author. On the first factor, it seems pretty clear Gomez didn't upload the document to purposefully "rob" the author of his earnings. On the latter, Gomez never made a cent from his infringing upload and actually took it down when he discovered Scribd was planning to charge unregistered users to download papers.

Beneath all of this lies the ugly reality of the academic research market. Just as in the US, plenty of useful information is locked up and inaccessible to anyone unable to afford the frequently exorbitant fees charged by various gatekeepers. Copyright's original intent -- "to promote the progress of science and the useful arts" -- isn't served by this behavior. Instead, it's deployed to further separate a large percentage of the population from knowledge. And in Colombia, it's being used to imprison someone actively "promoting the progress of science."

How do you measure the impact of a scientist's research? Some common metrics include the number of publications in peer-reviewed and high-impact journals, the number of citations, etc. But it's more complicated than just using the quantity and quality of a scientist's peer-reviewed publications to determine their significance in the scientific community. Here are a few more things to consider.

Researchers interested in an academic career, beware! Apparently, in recent years, it's become popular for universities to evaluate prospective hires based on their "h-index," which reflects both the number of publications and the number of citations per publication. However, a recent study has shown that current mathematical models that predict a scientist's future performance based on their past performance aren't reliable and shouldn't be used in career advancement decision processes. [url]

from the bear-facts dept

The Boycott Elsevier movement discussed here on Techdirt several times was born of a frustration at the high prices of academic journals. But another area arguably afflicted even more is that of textbooks for higher education:

According to The College Board, the average college student spends over $1,000 per year on textbooks. At community colleges, the cost of textbooks alone can often exceed 50% of a student’s overall educational expenses.

Is it any wonder that 7 in 10 college students have skipped buying a required text due to price concerns?

Just as with the publishing of academic papers, that translates into very fat profit margins:

The textbook publishing market is an oligopoly, with over 80% of the textbook market controlled by the top 4 publishers: Pearson, Cengage, Wiley and McGraw-Hill.

These publishers have been able to maintain nearly 65% gross margins on what is essentially a commodity product. They have continued to raise prices for this stagnant product in the face of innovation in every other information related industry, growing at a rate of 3 times inflation.

Defendant is in the business of distributing online textbooks that it claims serve as "substitutes" for Plaintiffs' textbooks. Rather than produce its own textbooks, however, Defendant steals the creative expression of others, willfully and blatantly violating Plaintiffs' intellectual property rights in several of their highest profile, signature textbooks. Defendant exploits and profits from Plaintiffs’ successful textbooks by making and distributing the free "Boundless Version" of those books, in the hope that it can later monetize the user base that it draws to its Boundless Web Site.

The nature of what Boundless is alleged to have "stolen" is rather unusual:

Notwithstanding whatever use it claims to make of "open source educational content," Defendant distributes "replacement textbooks" that are created from, based upon, and overwhelmingly similar to Plaintiffs’ textbooks. Defendant generates these "replacement textbooks" by hiring individuals to copy and paraphrase from Plaintiffs’ textbooks. Defendant boasts that they copy the precise selection, structure, organization and depth of coverage of Plaintiffs' textbooks and then map-in substitute text, right down to duplicating Plaintiffs’ pagination. Defendant has taken hundreds of topics, sub-topics, and sub-sub-topics that comprise Plaintiffs' textbooks and copied them into the Boundless texts, even presenting them in the same order, and keying their placement to Plaintiffs’ actual pagination. Defendant has engaged in similar copying or paraphrasing with respect to the substance of hundreds of photographs, illustration, captions, and other original aspects of Plaintiffs’ textbooks.

So the accusation seems to be that Boundless books are functional "clones" of existing textbooks, with the same overall organization and pagination, but with different words filling out the topics, sub-topics and sub-sub-topics. The question then becomes whether there is copyright in that arrangement.

The plaintiffs are also concerned about what they term "photographic paraphrasing":

An example of the obvious nature of Defendant’s photographic paraphrasing can be found in Chapter 8 of the authentic version of Campbell’s Biology where Plaintiff Pearson and its authors describe the First and Second Laws of Thermodynamics. To exemplify those laws, Plaintiff Pearson and its authors included two photographs, one of a bear catching and eating a fish, and another of a bear running. Plaintiff Pearson and its authors could have used any one of a universe of possible photographic subjects to demonstrate the laws of thermodynamics, but, based on the manner in which they wished to express their aesthetic and scholarly judgments, they opted for the bear engaged in these activities. In Chapter 8 of the Boundless Version of Cambell’s Biology, Defendant also discusses the first and second laws of thermodynamics. Defendant also includes two photographs to exemplify these laws, but instead of basing its selection and ordering on their own aesthetic and scholarly judgments, the two photographs Defendant includes are also of a bear eating a fish and a bear running, reflecting only the previously made creative, scholarly and aesthetic judgments of the authors and editors of Campbell’s Biology.

Is the use of a bear eating a fish a creative choice? Or is the creativity only in how the bear and the fish are depicted? In many ways, this is the same question put to a UK judge recently concerning a photo with a red double-decker bus crossing a bridge in London. In that case, rather surprisingly, the judge found that you could copyright the basic idea of a photograph.

In response to the publishers' lawsuit, Boundless says:

We’re currently preparing our full response, and we believe that the allegations in this lawsuit are without merit and we will defend our company and mission vigorously.

So it sounds as if we may get a chance to see where a US judge stands on that key issue of the idea/expression dichotomy in the case of academic textbooks and pictures of bears. This could be interesting.

from the boycott's-work dept

While it never got as much attention as the GoDaddy boycott, it appears the growing boycott of academics, refusing to publish papers in any Reed Elsevier journal, has caused the company to back down. It has now announced that it no longer supports the Research Works Act. That's the bill -- for which Elsevier was a major backer -- that would bar the government from requiring open and free access (after a period of time) to government-funded research:

While we continue to oppose government mandates in this area, Elsevier is withdrawing support for the Research Work Act itself. We hope this will address some of the concerns expressed and help create a less heated and more productive climate for our ongoing discussions with research funders.

Of course, then it immediately complains about the kinds of mandates that the Act would have disallowed:

Cooperation and collaboration are critical because different kinds of journals in different fields have different economics and models. Inflexible mandates that do not take those differences into account and do not involve the publisher in decision making can undermine the peer-reviewed journals that serve an essential purpose in the research community. Therefore, while withdrawing support for the Research Works Act, we will continue to join with those many other nonprofit and commercial publishers and scholarly societies that oppose repeated efforts to extend mandates through legislation.

That's pretty ridiculous actually. None of these mandates "undermine" these journals in any way -- unless you consider their insane set up (free writing, free editing, full copyright ownership, and subscriptions that cost tens of thousands of dollars) some sort of divine right. The mandates refer to federally funded research, which should be accessible by the public since they paid for the research in the first place. Elsevier doesn't pay for the research. Hell, they don't even pay the researcher for their paper. Or the peer reviewers for their work. So forgive me for not shedding any tears if Elsevier has to learn to adapt to only being able to have the exclusive rights to a paper for a year.

Still, with Elsevier dropping its support, hopefully it means that the original backers of the poorly thought out bill, Reps. Darrel Issa and Carolyn Maloney will drop the bill entirely. Instead, I'd very much like to see much greater support for Rep. Mike Doyle's counter-proposal, which would mandate that federally funded research be made available to the public.

Update: And.... now Issa has said that he won't move forward on the bill and (more importantly) that he now understands the importance of "open access" and how it's "the wave of the future."

from the urls-we-dig-up dept

It's kind of ridiculous when researchers actually have to pay to read journal articles about their own research online, but that's how academic publishing works. Even worse, the costs of access are obscenely high, limiting the readership to mostly people with access to libraries that can afford to pay the high subscription fees for journals. However, academics are starting to push back, and the good news is that there are at least a few efforts underway to create open-access online journals. Here are a few interesting links on the subject.

from the is-it-different-this-time? dept

It's now widely recognized that the extreme demands of SOPA/PIPA catalyzed a new activism within the Net world, epitomized by the blackout effected by sites like Wikipedia on January 18. But as Techdirt has reported, SOPA and PIPA are not the only attacks by the copyright industries on the digital commons: another is the Research Works Act (RWA), which attempts to remove the public's right to read the articles written by tax-funded researchers in open access journals form.

But, like SOPA/PIPA, RWA may have been an intellectual land-grab too far. It has provoked a rebellion by academics that might provide the final push needed to move academic publishing from its current mode, dominated by hugely-profitable corporations that require payment for most of their output, to one based around open access journals, with smaller profits, but whose articles are freely available online to all.

I am not only going to refuse to have anything to do with Elsevier journals from now on, but I am saying so publicly. I am by no means the first person to do this, but the more of us there are, the more socially acceptable it becomes, and that is my main reason for writing this post.

He singled out the giant publisher Elsevier (disclosure: I used to work for one of its sister companies) for three main reasons. First, for its scholarly journals' high prices; secondly, for its use of "bundling" -- forcing libraries to sign up for large collections of journals, whether they wanted them all or not; and finally, because of its support for SOPA, PIPA -- and RWA.

Gower's gesture was born of personal exasperation, but one that he knew many others shared. The question was how to mobilize people so that their collective action would have an effect. He wrote:

It occurs to me that it might help if there were a website somewhere, where mathematicians who have decided not to contribute in any way to Elsevier journals could sign their names electronically. I think that some people would be encouraged to take a stand if they could see that many others were already doing so, and that it would be a good way of making that stand public.

Within a couple of days, Tyler Neylon had set up just such a site, "The Cost of Knowledge: Researchers taking a stand against Elsevier", which repeats the three main objections that Gowers raised, and invites people to refrain from working with Elsevier. At the time of writing, nearly 2,000 academics from a wide range of disciplines have pledged their support for the boycott.

This is certainly the most visible revolt in recent years against the exorbitant profits of companies like Elsevier, and their tight control of the academic publishing process, but it's not the first or the biggest. Back in 2000, right at the dawn of open access, the Public Library of Science (PLoS) was created with the same aim of making research more widely available. To achieve this, the three founders of PLoS circulated an open letter calling for "the establishment of an online public library that would provide the full contents of the published record of research and scholarly discourse in medicine and the life sciences in a freely accessible, fully searchable, interlinked form", which contained the following passage:

To encourage the publishers of our journals to support this endeavor, we pledge that, beginning in September 2001, we will publish in, edit or review for, and personally subscribe to only those scholarly and scientific journals that have agreed to grant unrestricted free distribution rights to any and all original research reports that they have published

Nearly 34,000 scientists signed that letter, but only a handful of publishers committed themselves to making their articles available as the letter requested; worse, few signatories followed through with their promised boycotts of the publishers who refused. Will things be any different this time, in the post-SOPA world?

from the rather-than-a-brick-wall dept

It's no secret that we've got some serious problems with the way the old school scientific journals work -- basically locking up scientific research rather than really living up to their mandate to spread scientific knowledge. Stephen alerts us to a separate issue with traditional journal publications: how they handle the followup discussion. There's a great blog post at Scienceblogs, that compares two separate journal articles where readers felt that the results were falsified in some way (despite being peer reviewed). In one, the scientist had to go to hell and back just to get the editors publish a comment questioning the original article. In the second, even though the article was published in a journal, an outside blog post and its comments became an impromptu forum to question the data in the article -- with many scientists conducting the same experiment themselves and posting the results (including photos) in real-time.

The second one is obviously a lot more of the way research should work these days, though it shouldn't all be hidden in a separate site's comments. If journals are serious about advancing knowledge, rather than locking it up, why not give up on the obviously faulty simple peer review process, and open up the content so that knowledgeable people can input their own thoughts in comments directly on the article in question? Isn't that what knowledge exchange is supposed to be about?

from the don't-ask,-don't-tell dept

Ed Kohler points us to a long, but fascinating blog post, by Stuart Shieber, a CS professor at Harvard, discussing the somewhat ridiculous copyright situation that many academics deal with in trying to promote their own works. I've heard similar stories from other professors I know, but this one is worth reading. Shieber points out the importance of academics getting their research published in journals, but how annoying it is that most journals require those academics to give up all sorts of rights -- including the right to distribute their own research on their websites. However, he notes that most published academics simply ignore this rule, and you end up with a "don't ask, don't tell" policy. Even though they're legally prevented from putting up a PDF of their work on their website, they do so anyway, and journals just look the other way.

Shieber, however, finds this situation to be a bad thing, and instead adds an amendment that at least grants him the right to publish his own research on his own website. It seems pretty ridiculous that this should even be an issue at all. He notes that most journals haven't had a problem with this -- which is surprising, but good to hear. He did run into one publisher, however, who fought him on it, and after lots of back and forth, his paper was pulled. The reasoning that the journal gave didn't make much sense, and Shieber shows how wrong they are (for example, they claim that if professors published the works on their website, demand for journal subscriptions would go down -- but Shieber did a quick look, and found that about 80% of those who published in the same journal had posted the content anyway, and it hadn't killed off the journal, so arguing against him seemed pointless). Eventually, he was able to convince the journal to change its policies and got his paper published, but it delayed publication for a while.

It's really unfortunate that journals still think that locking up such content makes sense. The idea that researchers shouldn't be allowed to share their own research with the world because some journal needs artificial scarcity for its business model is something that needs to be put to rest.

from the news.-not-newspaper. dept

If high-quality reporting is prohibitively expensive, why not cut the cost of labor? So goes the thinking of NYU history professor Jonathan Zimmerman whose piece in The Christian Science Monitor argues that professors should be encouraged to write for newspapers for free, much as they did historically. Instead of publishing in journals solely for academics, professors should contribute their expertise to the general public through frequent newspaper commentary on world events.

Of course, the structure of success in academia -- "publish or perish" -- motivates professors to publish in journals that are inaccessible to general consumption. Plenty of well-respected professors already publish OpEd pieces in newspapers on a regular basis, but they tend to be already tenured. (Take Amartya Sen's recent article in FT accompanied by his very lengthy piece in the New York Review of Books -- all of which are an outgrowth of his scholarly publishing.) Zimmerman suggests that if "30 or 40 prominent research universities issued a joint statement, urging their faculty to publish in popular venues," more would do so. Unfortunately, coordinating such a move would be difficult and distracting.

Instead, academia should be thinking larger. We do not need professors to write for newspapers -- the medium itself is not necessary. Academia can do two things to support a vibrant, reliable information ecosystem: support open access and support faculty blogging. Open access publishing increases the availability and reach of scholarship; the original articles are more accessible, allowing more general purpose writing to piggy-back off them. And as for academic blogging, the future of news need not contain newspapers as we know them. Plenty of brilliant professors have compelling and informative blogs, but for the most part, these are not considered positively in the tenure process, creating a disincentive to young scholars. If Zimmerman and others who care about high quality information want to promote it, they should encourage tenure committees to support academic blogging.